Thursday, September 24, 2009

Beverly Masek Catches a Break at Her Sentencing

Anchorage—

Much to your blogger’s surprise, Beverly Masek only got six months in prison for taking bribes while a state legislator.

Criminal sentencing guidelines called for the former five-term Alaska State Representative to get sent away for 18-24 months, but U.S. District Judge Ralph Beistline sliced a year off that standard minimum sentence at the end of a hearing that sometimes sounded like a locker room pep talk.

Along with the defendant’s acceptance of responsibility and “community support,” Judge Beistline cited the six years that had passed between Masek’s acceptance of bribes and her sentencing for that crime as a reason to go relatively easy on the ex-lawmaker.

The Delay Between Crime and Punishment Troubles the Judge

Given that this is 2009, the court characterized Masek’s crimes in 2003 as “distant conduct.” He said that he was troubled by the delay, comparing the situation to his own father’s reluctance to punish him at the end of the day for misbehavior that the young Ralph Beistline committed first thing in the morning.

The lighter sentence imposed on Masek this morning can only be taken as a dig at the Department of Justice for the pace of its “POLAR PEN” probe into Alaska public corruption. That investigation started no later than April of 2004, and thus next month will be at least five and a half years old.

Given what Judge Beistline said and did at the sentencing regarding the gap between crime and punishment, it’s worth taking a brief look at how fast the feds could have moved against Masek versus how fast they did move. The Justice Department presumably could not have charged Masek until after long-time VECO CEO Bill Allen told the FBI he had bribed her, and Allen would not revealed that until after the feds started debriefing him after they flipped him on August 31, 2006.

It’s not clear when Allen gave up his bribery of Masek—he of course had a lot of crimes to confess—but it seems likely that it would have been in the first nine months after the oil-services and construction magnate started to talk to the feds. This very generous estimate factors in Bill Allen’s concern about getting immunity for his son Mark, whom media accounts have suggested was the person who delivered for his father the first of the cash bribes Masek took. Bill Allen’s plea agreement is dated May 2, 2007, and it specifically provides for immunity for Mark Allen.

After getting from Bill Allen the story of his bribes to Masek, she was easy to catch: The very opposite of a criminal mastermind, the Republican lawmaker from Willow immediately deposited one of her cash bribes into her bank account.

Based on the above analysis, it seems likely that the Department of Justice could have confronted Beverly Masek no later than June of 2007 and charged her no later than two months later. Instead, the feds did not contact her until May of 2008 and did not charge her until March of 2009, when they had a plea agreement with her in hand. (This sentencing has clarified that Masek made an agreement with the feds that she would waive her rights under the statute of limitations to claim that the government had not charged her on a timely basis, thus eliminating any legal argument that prosecution was barred on those grounds.)

All this suggests that if the feds had pushed as hard as possible on the Masek case, it could have shaved something like a year—or maybe up to two years—off the delay between offense and sentencing.

What the Witnesses and the Lawyers Said

Arguing for a treatment-focused sentence, defense attorney Rich Curtner called four providers of mental health services to testify at the hearing. Dr. Aron Wolf talked about his diagnosis of Masek as having the illnesses of Major Depression and Alcohol Dependence as well as a personality type of Passive-Dependent. (Dr. Wolf has been a psychiatrist in Alaska since 1967, but it’s a safe bet that he has no business card with the line “Shrinking the Great Land for More than Four Decades.” Watching the defense witnesses today also reminded me that just like those working in downtown D.C. generally have sharper haircuts than your average Alaskan, it’s also likely that your average person in the counseling business spends less on hair care than the median trial attorney.)

Like the other three defense witnesses, Dr. Wolf also stressed the availability of alcohol treatment on the Last Frontier, including programs that would show “cultural sensitivity” to Alaska Natives such as Masek.

Lead prosecutor Kendall Day had little to say, conducting a brief cross-examination of Dr. Wolf and giving a short argument for a prison sentence of 18-24 months.

A young man in a gray suit, the D.C.-based Day said that while Masek had an alcohol problem, so do many criminal defendants who have to go prison every day. He emphasized that Masek knew what she was doing when she took the two bribes, which totaled at least $4,000.

The brevity of the prosecutor’s presentation might have stemmed in part from his knowledge that the writer of the court-ordered pre-sentence report had recommended a sentence of 21 months, hitting the midpoint of the range of 18 to 24 months set out in the federal criminal sentencing guidelines for this offense.

The white-bearded Curtner took his time, by contrast, to promote his position that his client should get no jail time and a sentence focused on alcohol rehabilitation and therapy. He argued that the mitigating circumstances surrounding Masek’s offense, her need for treatment, her acceptance of responsibility, and the no-prison sentence Judge Beistline gave to ex-State Sen. John Cowdery (R.-Anchorage) for the same crime of bribery-related conspiracy combined to point to probation.

“It’s a long history to get here,” Curtner said of his client, who turns 46 next week. To explain how the crimes occurred, Alaska’s chief Federal Public Defender cited the culture of corruption that had grown around the legislature in recent years as well as his client’s weak personality and problems with depression and alcohol. Curtner argued that Masek’s obviously stupid action in taking one of her cash bribes immediately to the bank showed a lack of sophistication that made her less culpable.

The Defendant’s Allocution and the Judge’s Dialogue with Her

Masek dabbed repeatedly at her eyes with tissue during her lawyer’s sentencing argument, and she was openly crying when the time came to give her own statement to the court. After some false starts, she said that the prosecution had left her hurt, embarrassed, and humiliated. Speaking to a courtroom that included a number of people who looked like casual Bush Alaskans from her home Alaska Native village of Anvik, Masek said that “I know I’ve let a lot of people down.”

The four-time finisher of the famed Iditarod Sled Dog Race compared her situation to an accident on the trail: “I feel like I’ve been operating on a broken sled runner.” Faced with that problem of damaged equipment while racing, “I fixed it and moved on.”

When Masek finished, Judge Beistline took over. I’ve been to many hundreds of sentencings in my legal career, and this may have been the most unusual.

In delivering his comments, the judge was alternately stern, condemning, encouraging, and inspirational.

Noting that the defendant had been elected and taken the oath of office five times, he said “You violated that oath….You broke the law.”

Taking much of the prosecution’s view of the case, Judge Beistline told Masek that she had taken “illegal money” on two occasions and had sought out even more. Dismissing any “It’s just the booze” argument as an excuse, the judge said that the legislator was sober at the moment she solicited the bribes.

Although he didn’t directly attack her “broken sled runner” analogy, it was clear that the judge saw what happened as more like Masek choosing to beat her dogs rather than just another unfortunate accident on the trail.

The judge also said that the defense's suggestions that Masek’s disadvantaged upbringing or the criminality of some fellow lawmakers should lighten her sentence did not cut any ice with him. Drawing on his background in his hometown of Fairbanks, Alaska, Judge Beistline said that he grew up with many people who started out in humble circumstances and went on to do great things in life.

The court took pains to distinguish ex-Sen. Cowdery’s case from Masek’s, opining that the facts that Cowdery didn’t get any cash for himself and engaged in less obviously illegal conduct than Masek justified the light sentence the judge imposed on Cowdery.

Noting that mental health professionals described her as having “minimal functionality” during at least some substantial periods of her 10-year legislative career, the judge suggested that it was scary that someone so weak and so out of control was in a position of public trust and power.

“You’re hardly a role model, at least in the last decade,” Judge Beistline observed. Despite the iconic status with some Alaskans—particularly young people and Natives—that the Iditarod racer and lawmaker may have enjoyed at one point, the judge said that in recent years Masek had been more of an example of how not to act.

After the tough talk, though, the judge announced that he was going to pass up the sentence of 18 to 24 months he was fully justified in imposing under the law in favor of sending Masek to prison for six months. This post has already discussed the factor of delayed justice that the court seemed to rely on most in giving Masek a sentence that the judge said showed “considerable compassion.”

Setting aside the logic of the reduction, what was most interesting was the judge’s demeanor. Some judges hand down sentences as if they were senior distinguished professors forced to announce the grades for some unusually dim and lazy students; others go into full god-like mode. Judge Beistline sentenced Masek like he was a veteran high school basketball coach in a small town kicking a young player off the team for multiple infractions of the rules. It’s not the end of world, kid: Keep your nose clean and work hard, and you can get back on the squad next year.

The judge asked the former legislator if she could comply with the sentence, and she said she could. He asked her if she would comply, and she said that she would.

“We want you to finish this process employable and mentally, physically, and emotionally healthy,” Judge Beistline told Masek. “You do what you’re supposed to do when you’re supposed to do it, and I guarantee that your life will get better.”

The Meaning of the Sentence

This sentence is significantly lighter than I thought it would be. (Recall that your humble blogger speculated that the judge would give Masek “well over a year” in prison—this just shows the wisdom of the old saying that predictions are risky, particularly when they’re about the future.)

No matter how good her lawyer feels tonight—and Rich Curtner should feel good—this sentence does not exactly give Masek a walk in the park. The former 10-year legislator has got to go to prison for six months, and that prison will be far from her family and friends in Alaska. Prison is still prison, even if it’s a minimum-security facility like the one Masek will be in. And she will be on supervised release for three years after her release, which also will not be fun. While on probation, she could be ordered to go to residential alcohol treatment for up to six months as long as the program was culturally sensitive. Even when not in a residential program, she could be drug-tested up to 12 times a month while on probation. The judge made a special point to tell her that as a felon she can’t own firearms, and he also told her that she should not plan to drink any more alcohol the rest of her life.

While on probation, the defendant could also try to recapture that role model status she has lost. Judge Beistline told Masek that “You could be a mouthpiece for your community and your culture.” He specifically suggested that she could speak to audiences about the evils of alcohol and—in a comment that led to grumbling outside the courtroom about a double standard for female defendants—the possibilities that in certain circumstances a woman can be taken advantage of.

Some observers think that a sentence of six months in prison is pretty light for a state legislator who takes two cash bribes. Others wonder if she benefitted at the sentencing from being a Native woman. Under all the circumstances, what do you think?